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The Prosecution Calls to the Witness Stand: Alexa™

Internet-connected personal assistant devices, such as Amazon Echo and Google Home, are becoming increasingly popular as people have begun to rely on the always-alert microphone systems for personal reminders (e.g., remind me to call Jessica on her anniversary) and random and topical questions of interest (as in, who was the musician that was married to Carrie Fisher?). As the phrase “always-alert” indicates, there are myriad privacy issues surrounding these devices and systems which have been the subject of discussion among consumer advocate groups and professionals in data and personal privacy matters and legal issues. Now the debate has entered the sinister world of criminal law after Arkansas police requested Amazon Echo recording data from Amazon which they think may hold clues to a murder case from November of 2015. As Law & Order fans know, the Fourth Amendment’s prohibition of unreasonable search and seizure protects us from arbitrary and unfair governmental intrusions whenever we have a reasonable expectation of privacy. This right was further fleshed out in 1986 when Congress passed the Electronic Communications Privacy Act (ECPA) to limit and specify the instances in which government actors may access one’s electronic communications, including phone lines, email and electronic correspondences and tracing, and electronic money transfers.

However, in this case, the defendant who is suspected of murder invited Alexa™ into his home; he likely waived his reasonable expectation of privacy by voluntarily purchasing and installing the Echo device, and allowing it to listen to him and report back to Amazon. No one envies the PR issues faced by Amazon… avoiding the perception or accusation that it refuses to aid in a murder investigation while at the same time adhering to its own privacy and data collection policies and encouraging everyone in the world to buy an Echo and forget that it’s essentially a sophisticated fly-on-the-wall on every wall in your house, with potentially infinite recording and storage capacity. The legal issues are similarly multi-faceted and brain-twisting. What information does Amazon receive, store, and associate with individual users – device type, aural information, metadata, location? Would data include conversations by and with other people who did not voluntarily waive their rights to privacy? Who may be minors or weren’t even aware of a listening device in the room? Beyond this, could police obtain and couple this data with other “smart” devices including climate control and monitoring systems (like Nest™) and home utility usage and alarm systems? The “Internet of Things” has made life easier and safer in countless ways, but will continue to create legal and privacy issues as we struggle to fully understand the legal repercussions of the tech we all asked Santa for. Also, someone should tell Alexa that snitches get stitches.

As a member of Gross McGinley’s Internet Law and Intellectual Property Groups, Nicole J. O’Hara provides guidance to businesses on matters involving online privacy, data collection, online communications, and more.

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